Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, July 6, 2016

Looking at it from James Comey's perspective (some facts, inferences, and speculations)

Like everyone else, I'm trying in light of all the available information to process what happened yesterday. I believe or know the following propositions to be true. Regarding those that I believe but do not know for sure to be true, I would welcome evidence tending to undermine them. 

(1) FBI Director James Comey is highly intelligent.

(2) He is fundamentally honest.

(3) He is a patriotic American who wants what is best for the country.

(4) He is a Republican who supported McCain in 2004 and Romney in 2008.

(5) He is an establishment figure, albeit one who believes that the range of reasonable political choices is wide, extending from Ted Cruz and his supporters on the right to Barack Obama and his supporters on the left.

(6) He does not believe the range of reasonable political choices for the United States includes Donald Trump and his extreme nationalism or Bernie Sanders and his socialism.

(7) He believed he had an obligation to inform the public of what his agency's investigation revealed about Hillary Clinton's "extremely careless" handling of sensitive national security-related information and her other moral and possible legal delinquencies.

(8) He believed that, in the circumstances, he had some legitimate discretion about whether to recommend an indictment under the relevant federal statutory provisions. He believed that he was not legally required to interpret "extremely careless" as "grossly negligent" or "reckless." He believed he had similar wiggle room on other possible charges.

(9) He believed an indictment of Hillary Clinton would essentially force her out of the presidential race and that, whatever the pundits may think, as a practical matter the Democratic Party would not have been able to deny Bernie Sanders its presidential nomination by slipping in a more "respectable" person, such as Joe Biden or John Kerry. (NB: I believe he is right about this. It is not 1924 or even 1968. Party establishment elites no longer have the power they once possessed in the area of presidential nominations.)

(10) He believed that for him to trigger a chain of events that would in all likelihood have left the American people with a choice between Donald Trump and Bernie Sanders, where he could legitimately exercise discretion in such a way as to avoid that happening, would have been irresponsible.

So who has a right to complain?

Well, there are those (I'm one) who do not believe that the FBI Director's discretion legally extends as far as Mr. Comey evidently thinks it does. And there are the "purists" (again, I'm one) who believe that considerations of the impact on the election of a decision to recommend indictment should have played no role whatsoever. Then, I should think, there are supporters of Senator Sanders, who was, in my view, the person most immediately harmed by Comey's action. As I indicated a moment ago, a decision to recommend indictment--a decision supported by the facts presented by the FBI Director in the first 14 minutes of his 15 minute presentation--probably would have resulted in Hillary Clinton's political demise and Bernie Sanders' nomination and possible election as President of the United States.


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